Shabir Ahmad Malla vs Sho Police Station Shopian And Ors
2022 Latest Caselaw 510 j&K/2

                                                                                S. No.49
                                                                                Regular List


           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                         AT SRINAGAR


                                         CRM(M) No.206/2021
                                         CrlM No.789/2021

           Shabir Ahmad Malla
                                                                           .....Petitioner(s)
                                         Through: Mr. T.A.Lone, Advocate

                     V/s

           SHO Police Station Shopian and Ors
                                                                      ..... Respondent(s)
                                       Through: Mr.Asif Maqbool, Dy.AG
           CORAM:
              HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                 ORDER

05.05.2022

1. The petitioner has challenged FIR No.316/2016 for offences under

Section 148, 436 RPC and Section 3 of the Prevention of Damage to

Public Property Act registered with Police Station Shopian.

2. In the impugned FIR it is alleged that on 19.09.2016 a mob of people

attacked building of Government Primary School Chatawatan Tehsil

Shopian, as a result of which the building was razed to the ground.

Besides this, the adjacent building of Panchayat Ghar was also gutted.

On receiving this information, the police registered the impugned FIR

and started investigation of the case.

3. It has been contended by the petitioner that he has not been named in

the impugned FIR nor he is involved in the alleged offences. That the

police has falsely implicated him on the basis of some fabricated

information due to animosity. It is contended that another FIR bearing

No.272/2016 was also lodged by the police in which charge sheet was

filed against the accused including the petitioner but the same was SARVEEDA NISSAR 2022.05.07 06:06 I attest to the accuracy and integrity of this document

CRM(M) No.206/2021 CrlM No.789/2021

dismissed by Principal Sessions Judge Shopian vide his judgment dated

28.12.2019. It is further averred that the petitioner has been appointed

as a Fireman in the Fire and Emergency Services Department but

because of the pendency of the impugned FIR, his salary is not being

released. It is contended that the investigating agency has not

conducted proper investigation of the case and if the same is done, the

petitioner would be exonerated of all the allegations. It is also

contended that the impugned FIR does not disclose commission of any

offence by the petitioner as he has not been named therein. Lastly it

has been contended that the investigation of the case is not being

conducted expeditiously which is causing prejudice to the rights of the

petitioner.

4. Status report on behalf of the official respondents has been filed. In

their report the respondent No.1 has submitted that the investigation of

the case has been conducted and the statements of the witnesses under

Section 161 Cr.PC have also been recorded. According to respondent

No.1, involvement of 29 persons including the petitioner has surfaced

in the case. Out of them, 8 accused persons have been arrested and later

on released on bail while as 12 more accused persons have also been

arrested. It has however been submitted that arrest of 9 more accused

persons is still awaited.

5. I have heard learned counsel for the parties and perused the material on

record including the case diary.

6. It is true that in the impugned FIR names of accused persons are not

mentioned and obviously name of the petitioner does not figure therein.

However, a perusal of the case diary reveals that there are statements of SARVEEDA NISSAR 2022.05.07 06:06 I attest to the accuracy and integrity of this document

CRM(M) No.206/2021 CrlM No.789/2021

eye witnesses recorded under Section 161 Cr.PC out of whom at least

3 witnesses have categorically named the petitioner as being part of the

mob who set on fire the school building and the panchayat ghar.

Therefore, it is not a case where there is no material on record of the

case diary to suggest the involvement of the petitioner in the alleged

crime.

7. It is a settled law that a criminal prosecution can be quashed against a

person only if from the contents of the FIR and the material collected

during investigation of the case no cognizable offence is disclosed

against a person. However, in the instant case though the petitioner is

not named in the impugned FIR, but there is definite material on record

to suggest his involvement in the alleged crime. Therefore, the

prosecution against the petitioner in such circumstances cannot be

scuttled by quashing the same. The power of the High Court under

Section 482 of the Cr.PC cannot be invoked to quash a genuine

prosecution.

8. For the foregoing reasons, I do not find any merit in this petition. The

same is dismissed. However, the investigating agency is directed to

complete the investigation of the case expeditiously so that the culprits

are brought to book and the innocent persons are not dragged

unnecessarily while keeping the investigation pending for years

together.

9. The case diary be returned.

(SANJAY DHAR) JUDGE SRINAGAR 05.05.2022 Sarveeda Nissar

SARVEEDA NISSAR 2022.05.07 06:06 I attest to the accuracy and integrity of this document